The all powerful A-G and other fallacies
by Jonathan Rosenblum
May 18, 2001
Our Sages tell us that the first time a person sins, he still knows that his sin is a sin. If he repeats the sin, however, it already begins to look less serious in his eyes. And by the third time he commits the same sin, it is already a mitzvah.
That same process seems to be operative in the realm of stupid ideas: Repeat a stupid idea frequently enough and it comes to seem like the height of wisdom. One such idea is that the "rule of law" in Israel depends on the attorney-general being made the ultimate arbiter of public legal norms - his decisions immunized from any form of review and incapable of being contested by the Prime Minister.
Last week, the Supreme Court reiterated the principle that the attorney-general's rulings bind the government. The Court forced Prime Minister Ariel Sharon to accept Attorney-General Elyakim Rubenstein's determination of when it is appropriate for Sharon to use his son Omri as a personal envoy.
The Court did not deem it necessary to decide any of the legal issues raised by Sharon's attorney Yaacov Neeman. Neeman was given to understand that once the attorney-general has spoken all must obey.
Yet the position of attorney-general as it has developed in Israel has little statutory basis. The principle that the attorney-general's decisions bind the government is a creation out of whole cloth of the Supreme Court.
Nor does that rule comport with the practice in other democracies. . The Attorney-General of the United States, for instance, serves at the pleasure of the president. He is appointed by the president, not foisted upon him, as is frequently the case in Israel, where the attorney-general is often a holdover appointment from the previous government.
The President of the United States consults with the attorney-general on the positions that the government will adopt in cases before the Supreme Court and will often seek his opinion on the legality of particular governmental actions. When, however, the attorney-general and the president disagree, the former must either give way or resign.
Such a resignation will inevitably have important political consequences for the president, but his authority is unquestioned. That is what happened during Watergate when Attorney-General Elliot Richardson resigned after refusing refused to obey President Nixon's order to fire Independent Prosecutor Archibald Cox.
Does that mean that the rule of law is absent in America? Hardly. Private citizens are still free to challenge governmental action that they believe to be illegal in court. At the same time, the executive branch is assured of the ability to have its legal position tested in court.
By contrast, in Israel, with the world's most liberal rules of standing and justiciability, the only party that cannot get a ruling on the legality of governmental action is the government itself, if the Attorney-General refuses to defend the government's position.
The creation by the Supreme Court of an attorney-general who is the last word on crucial legal issues of first impression allows the Supreme Court to police the executive branch without getting its hands dirty. The position of Attorney-General has become one of the traditional stepping-stones to the Court. Meir Shamgar, Yitzchak Zamir, and Aharon Barak all served as attorney-general before ascending to the Supreme Court.
An ambitious Attorney-General will be acutely aware of the policy preferences of the justices. Nor will he be unmindful that the justices control the selection of their successors. From the point of view of the justices, it is preferable to have the attorney-general take the heat for crucial policy decisions and spare themselves the messy business of enunciating clear legal rules.
Rubenstein's decision concerning Omri Sharon is a case in point. He pointed to no statutory provision violated by the Prime Minister's use of his son. The presumption in a normal legal culture - i.e., one in which binding legal norms are not being constantly "discovered" by judges out of thin air - is that what is not prohibited by statute is permitted.
That presumption is even stronger when it involves the ability of the Prime Minister to carry out diplomatic activities, an area in which he traditionally is granted great deference. Certainly the use of Omri Sharon is far less objectionable than Ehud Barak's use of Yossi Ginosar, who had a large financial stake in the Palestine Authority, as a personal emissary to Arafat. Yet Rubenstein did not see fit to object to the use of Ginosar as an envoy.
Nor does of the traditional reason underlying anti-nepotism statutes - the fear of the public payroll being loaded with incompetent relatives - apply in this case. Omri Sharon is not on the government payroll, and is clearly the person most trusted by his father.
Such things "are not done," the reason given by Rubenstein for not approving the use of Omri, simply does not rise to the level of an intelligible legal standard. Which is not to say that previous attorney-generals have not relied on equally nebulous standards - e.g., "not in accord with the rules of good government," "bad policy," "inappropriate. After all, they are Supreme Court justices in training.
In his famous January letter to former Prime Minister Ehud Barak, Rubenstein admitted that there was no specific statutory bar to a caretaker government conducting fateful diplomatic negotiations, yet questioned the government's "moral authority" to do so. (Rubenstein frequently conflates the role of legal authority and rabbi.) On that basis, he could not say that the government was acting illegally.
Why does the fact that such things are "not done" make it illegal, while a lack of "moral authority" does not. Indeed there was far more basis for inferring from the structure of the Basic Law on caretaker governments a lack of legal authority for such fateful diplomatic negotiations. Barak's caretaker government did not even have the power to appoint an ambassador to South Korea.
As usual, in our legal wonderland, it all depends on whose ox is gored.
Related Topics: Israeli Supreme Court
receive the latest by email: subscribe to the free jewish media resources mailing list